J-S49036-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVEN JOHN GARDNER, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 288 MDA 2018

Appeal from the Judgment of Sentence January 18, 2018

In the Court of Common Pleas of Adams County Criminal Division at 

No(s): CP-01-CR-0000595-2017

BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 20, 2018

Appellant, Steven John Gardner, Jr., appeals from the judgment of 

sentence entered by the Court of Common Pleas of Adams County after a jury 

convicted Appellant of terroristic threats, recklessly endangering another 

person (REAP), and two counts of simple assault. Appellant claims the trial 

court abused its discretion in allowing the prosecution to introduce certain 

evidence pursuant to Pennsylvania Rule of Evidence 404(b). We affirm.

Appellant was charged with the aforementioned offenses in connection 

with his assault of his former fiancée, Stephany Nonemaker (“the Victim”). 

The following factual background was developed at Appellant’s jury trial:

On May 9, 2017, at approximately 1:00 p.m., Tracy Zimmer was 

delivering mail at 69 Winslow Court, Gettysburg, Adams County, 

Pennsylvania and heard a woman screaming at 73 Winslow Court. 

Ms. Zimmer saw the front door open and heard a woman 

screaming at the top of her lungs and also heard a man’s voice 

screaming at her and then the door slammed shut with force. Ms. 
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Zimmer heard the screaming continue for about ten or fifteen 

seconds. Ms. Zimmer subsequently called the police.

[The Victim] testified that she lived at 73 Winslow Court, 

Gettysburg, Adams County, Pennsylvania on May 9, 2017 with 

[Appellant]. 73 Winslow Court is a three story townhouse and is 

in a row with other townhouses, with neighbors on both sides of 

73 Winslow Court. The Victim testified that on May 9, 2017 she 

worked at Gettysburg Hospital in the emergency department as a 

registered nurse and got home from work at approximately 7:00 

a.m. At approximately 10:00 a.m. Appellant got into an argument 

with the Victim and the Victim retreated to the master bedroom 

and locked the door. Appellant picked the lock, entered the 

bedroom, pulled the Victim off the bed to the doorway of the 

bathroom and started kicking and punching the Victim on her 

arms, chest, back and legs with a closed fist and with his bare 

feet. Appellant then put both hands around the Victim’s neck and 

choked her. The Victim testified she felt pressure on her neck and 

it was hard to breath[e]. The Victim attempted to punch Appellant 

in the groin. Appellant grabbed her foot and put her foot on her 

neck, applied pressure and the Victim testified that ... it was 

difficult to breath[e]. Appellant continued screaming and yelling 

at the Victim, pulled the Victim’s hair and continued to kick and 

punch her. This assault occurred on and off for approximately two 

hours. During the assault Appellant asked the Victim whether the 

Victim wanted to die today, and Appellant also told the Victim she 

was going to die today.

Between approximately 12:30 p.m. and 1:00 p.m.[,] the Victim 

was on the second floor with Appellant and was able to run down 

to the first floor, unlock the front door and open the door. 

Appellant grabbed the Victim by the hair and yanked the Victim 

back into the house before the Victim could get outside. The 

Victim fell on the floor and Appellant kicked the Victim again. 

Appellant grabbed the Victim by her hair and forced her upstairs 

into the living room. The Victim sat down on a chair in the living 

room. Appellant went into the kitchen, returned to the living 

room, carrying a handgun and forcefully pressed the loaded 

handgun to the left temple of the Victim. Appellant held the gun 

with two hands and told the Victim he was going to kill her. The 

Victim was crying and begged Appellant not to kill her. Appellant 

then held the handgun to his own head and told the Victim he was 

going to kill himself. Appellant then took the handgun back into 

the kitchen. Appellant returned to the living room, slammed a 
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coffee table on the floor and the coffee table broke. Appellant 

threw one of the legs of the coffee table at the Victim’s head, 

which missed the Victim. Shortly thereafter, Cumberland 

Township Police arrived at the residence and Appellant was 

subsequently arrested.

Shannon Small, a registered nurse and sexual assault nurse 

examiner at Gettysburg Hospital, testified concerning her 

treatment and observations of the Victim on May 10, 2017 at the 

Gettysburg Hospital. Nurse Small testified concerning visible 

injuries on the Victim which she documented through photographs 

and diagrams. On the Victim’s back, Nurse Small documented 

twenty-two separate injuries. On the front of the Victim, Nurse 

Small documented thirteen separate injuries. On the left and right 

lateral views of the Victim (the side view), Nurse Small 

documented eleven injuries. On the Victim’s head and neck area 

Nurse Small documented six injuries. On the Victim’s eyes and 

inside her mouth, Nurse Small documented one injury. Nurse 

Small testified the visible injuries consisted of bruises, abrasions, 

and scratches.

Dr. Gregory J. Codori, an emergency room doctor at Gettysburg 

Hospital for twenty-five years, testified concerning his treatment 

of the Victim on May 10, 2017. Dr. Codori corroborated the 

testimony of Nurse Small and testified the Victim suffered multiple 

contusions, abrasions and scratches over her face, neck, chest, 

back, and extremities. Dr. Codori testified that the injuries were 

consistent with blunt force trauma from a punch or a kick.

Sergeant Matthew S. Trostle of the Cumberland Township Police 

Department testified that on May 10, 2017, he went to the Victim’s 

residence and recovered a [Beretta] Nano 9 mm handgun which 

had a round in the chamber and a full magazine. The Victim 

advised Sergeant Trostle that this was the handgun which 

Appellant used to threaten the Victim. At trial, the Victim 

identified this handgun as the handgun Appellant pressed to her 

temple while Appellant threatened to kill the Victim.

Appellant testified that on May 9, 2017 he and the victim were 

involved in a verbal dispute. Appellant testified that during the 

verbal dispute the Victim grabbed the handgun and Appellant 

jumped on top of her to try to get the gun away from the Victim. 

Appellant testified he was holding the Victim’s arms and punched 

her in the chest to get her to release the handgun. Appellant 
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grabbed the Victim, threw her to the ground, got on top of her 

and forced her to release the handgun. Appellant testified he then 

grabbed the Victim, picked her up, and threw her on the bed. 

Appellant testified this incident happened in the master bedroom 

on the third floor of the townhouse.

Appellant testified that this was the only physical altercation he 

had with the Victim on May 9, 2017. Appellant denied threatening 

the Victim with the handgun or pressing the handgun up against

the Victim’s temple. Appellant denied punching or kicking the 

Victim other than Appellant attempting to take the handgun from 

the Victim.

In rebuttal testimony, the Commonwealth called Allison Krayo as 

a witness. Allison Krayo was a prior girlfriend of Appellant and 

testified concerning a prior [incident] involving Appellant. Prior to 

Ms. Krayo’s testimony, this Court provided the jury with the 

following cautionary instruction:

The Court: Before Ms. Krayo testifies, there is an instruction 

I want to give you concerning her testimony.

The evidence which the Commonwealth is going to present 

for you is what is known as rebuttal, and it’s to rebut 

evidence that has been presented in the defense case, and 

this evidence is being offered for strictly a limited [purpose].

It is offered for the purpose of tending to show that 

[Appellant’s] actions in regards to the firearm that is alleged 

in this case to have been held to the alleged victim’s head, 

and [Appellant] gave his own rendition of what occurred ... 

this evidence is being offered to show that [this] was not an 

accident ... this evidence is offered by the Commonwealth to 

show [Appellant’s] intent in this case.

This evidence that we are going to present must not be 

considered by you in any way other than for the purpose I 

have just stated.

You may not regard this evidence as showing [Appellant] is 

a person of bad character or criminal tendencies from which 

you might be inclined to infer guilt.
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If you do find [Appellant] guilty in this case following my 

instructions and following all the evidence, that must be 

based solely on your belief that he committed the crimes in 

this case, and not because you believe that he has 

committed other offenses in the past or is a bad person.

Ms. Krayo testified that she dated Appellant between June 2009 

and February 2010. Ms. Krayo testified that she and Appellant 

were in Appellant’s bedroom laying on Appellant’s bed. Ms. Krayo 

and Appellant were arguing and Appellant grabbed a handgun, 

pointed it at Ms. Krayo’s face[,] approximately twelve to fifteen 

inches away from her face and told Ms. Krayo to “shut the fuck 

up.” Ms. Krayo did not threaten Appellant before this incident nor 

did she touch the handgun. Ms. Krayo testified that this incident 

occurred near the end of their relationship.

Trial Court Opinion (“T.C.O.”), 4/4/18, at 2-5.

At the conclusion of the trial, the jury convicted Appellant of the 

aforementioned charges. On January 18, 2018, the trial court imposed an 

aggregate term of 111⁄2 to 23 months’ imprisonment with a concurrent seven 

years’ probation. Appellant filed a timely appeal and complied with the trial 

court’s direction to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b).

Appellant limits his appeal to challenge the trial court’s discretion in 

permitting the Commonwealth to present evidence pursuant to Pennsylvania 

Rule of Evidence 404(b). Specifically, Appellant contends that it was error to 

allow the admission of Ms. Krayo’s testimony in light of the timeframe between 

the acts and the crimes for which Appellant was on trial and also his assertion 

that the evidence was not relevant to motive, intent, or lack of mistake. 

In reviewing a challenge to a trial court’s discretion in admitting 

evidence, we are guided by the following standard:
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The standard of review employed when faced with a challenge to 

the trial court's decision as to whether or not to admit evidence is 

well settled. Questions concerning the admissibility of evidence 

lie within the sound discretion of the trial court, and a reviewing 

court will not reverse the trial court’s decision absent a clear abuse 

of discretion. Commonwealth v. Hunzer, 868 A.2d 498 (Pa. 

Super. 2005). Abuse of discretion is not merely an error of 

judgment, but rather where the judgment is manifestly 

unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill 

will. Id.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation 

omitted).

Moreover, it is well-established that:

[g]enerally, evidence of prior bad acts or unrelated criminal 

activity is inadmissible to show that a defendant acted in 

conformity with those past acts or to show criminal propensity. 

Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be 

admissible when offered to prove some other relevant fact, such 

as motive, opportunity, intent, preparation, plan, knowledge, 

identity, and absence of mistake or accident. Pa.R.E. 404(b)(2). 

In determining whether evidence of other prior bad acts is 

admissible, the trial court is obliged to balance the probative value 

of such evidence against its prejudicial impact. Commonwealth 

v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (2008).

Commonwealth v. Sherwood, 603 Pa. 92, 114, 982 A.2d 483, 497 (2009).

The Pennsylvania Supreme Court has indicated that a party’s challenge 

to the remoteness of an evidence admitted under Rule 404(b) “generally 

affects the weight—but not the admissibility—of the evidence; further, the 

Court has emphasized the deference due to the trial court in the exercise of 

its discretion.” Commonwealth v. Reed, 605 Pa. 431, 446-47, 990 A.2d 

1158, 1168 (2010). “While remoteness in time is a factor to be considered in 
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determining the probative value of other crimes evidence under this theory,

the importance of the time period is inversely proportional to the similarity of 

the crimes in question.” Commonwealth v. O'Brien, 836 A.2d 966, 971 

(Pa.Super. 2003) (citation omitted). Our courts have determined that 

remoteness in time is “another factor to be considered in determining whether 

a prior incident ... [of abuse] tends to show that a second incident ... [of 

abuse] was an accident.” Commonwealth v. Donahue, 519 Pa. 532, 545, 

549 A.2d 121, 127–28 (1988) (plurality) (finding three years was not unduly 

remote). See also Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super. 

1996) (finding evidence of sexual molestation by defendant that occurred 

between six and fourteen years prior to the crime charged in the present case 

was admissible under the common scheme, plan, design or course of conduct 

exception to the general rule that evidence of uncharged acts is inadmissible 

against defendant).

Moreover, with respect to probative value, this Court held in 

Commonwealth v. Green, 76 A.3d 575 (Pa.Super. 2013), appeal denied, 87 

A.3d 318 (Pa. 2014), that the trial court did not abuse its discretion in 

permitting the admission of evidence that the appellant had pointed a gun at 

the victim's head “in mere play” two months before the murder, which was 

probative of the appellant’s motive or absence of mistake.

In the instant case, the trial court allowed the prosecution to introduce 

Ms. Krayo’s testimony on rebuttal after Appellant had testified that he had 

never intentionally threatened the Victim with a handgun, denied pressing the 
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gun against the Victim’s forehead and claimed only to have attempted to grab 

the handgun to protect himself from the victim. 

Although seven to eight years had elapsed between the acts testified to 

by Ms. Krayo and the crime for which Appellant was on trial, evidence of the 

prior act was necessary to rebut Appellant’s contention that he never had the 

intent to threaten the Victim with the firearm and that he was merely 

attempting to remove the firearm from the Victim’s grip. 

We agree with the trial court that the evidence of Appellant’s prior act 

of recklessly pointing a firearm at close range to his paramour’s head in their 

bedroom after a verbal dispute was not unduly remote and was probative to 

this issue of motive or absence of mistake. Accordingly, we conclude that 

Appellant’s claim is meritless.

For the foregoing reason, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/20/2018
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